[By Chapter One Foundation]
Article 20 (1) of the Constitution of the Republic of Zambia guarantees every citizen the freedom to express themselves, to hold opinions and to receive and share their ideas without interference. This freedom can be limited by law in the interest of the public order, public morality, public safety, public health, and to protect the rights and reputations of other people. One such legal limitation is criminal defamation.
Criminal defamation refers to the publishing of defamatory matter in writing or by any means other than by word of mouth. A person found guilty of the offence of criminal defamation may be sentenced to pay a fine or serve a term of imprisonment in addition to paying a fine. In addition to the offence of libel, the law also establishes the offence of defamation of the President. Any person who conveys or communicates defamatory or insulting material, whether in writing or by word of mouth, with the intent to bring the President into ridicule or contempt may be found guilty of defamation of the President. The penalty for defamation of the President is imprisonment for up to three years.
In Zambia today criminal defamation and defamation of the President have been weaponised to intimidate and silence the opposition, critics, and dissenters. Over the past five years, the number of people accused of criminal defamation and defamation of the President has been on a steady rise. Chilufya Tayali, Fresher Siwale, Chishimba Kambwili, Mubita Nawa, Saboi Imboela, Lawrence Kasonde, Alex Munganga, Steven Phiri, Edward Zyambo, Augustine Kunda, Gift Hachilima and Charles Kambole Malawo are but a few names of people who have either been charged with or found guilty of criminal defamation or defamation of the President in the past two years. The accused persons range from heads of opposition political parties to juveniles arrested for drawings made in jest. Persons who hold public office readily report critics to law enforcement officers and even publicly threaten to have members of the public and members of the opposition prosecuted for the offence of criminal defamation. In many of these cases, the person charged with the offence is kept in police custody for long periods of time before being taken to court or released on bail. Whether the failure to take accused persons to court within the time-period prescribed by law is a matter of negligence or simply by design, it is easy to draw parallels between the offences, the offenders, and the amount of time they are kept in custody. This is a worrying and very dangerous trend that, if unchecked, will only lead to even bolder attempts to undercut our democracy.
In a democratic state, the freedom of expression necessarily entails the freedom to share ideas and opinions that criticise, ridicule, question the status quo and even shock. Limitations to this freedom can only be justified within the terms of the Constitution that is in the public interest and to protect the rights of others. However, the law already provides an avenue for persons whose reputations are threatened through civil defamation wherein one private citizen can sue another for damage caused to their reputation. There is therefore no justification for a criminal sanction in the name of “criminal defamation”.
The offences of criminal defamation and defamation of the President stifle political discussion and lead to a government which functions on the fear of its citizens. Where there is no freedom of speech, self-censorship, and persecution of those who hold opposing views are the order of the day. This state of affairs also endangers the independent media for whom the refusal to parrot propaganda comes at a high cost. Persons who hold public office must not only be able tolerate a lot of criticism, but they must also expect it. The use of the offences of criminal defamation and defamation of the President as a means of targeting political opponents and citizens with dissenting views in the name of protecting a reputation is undemocratic. The freedom of expression ought not to be limited unless it poses a clear risk of harm and even then, the limitation must be proportionate to the harm threatened. Harm to an individual’s reputation is hardly a risk for which state resources and taxpayers’ money ought to be expended when the law provides other avenues of redress. The offences of criminal defamation and defamation of the President and their weaponisation is unjustifiable in a democratic dispensation. The increase in the number of cases of criminal defamation and defamation of the President should be cause for concern for all Zambians as it is evidence of a slow but sure breakdown of our democratic rights.